WARNING

The judge hearing this motion directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2021-07-23 Docket: M52633 (C68522)

Before: Thorburn J.A. (Motions Judge)

Between: Her Majesty the Queen, Respondent (Responding Party) and D.L., Appellant (Applicant)

Counsel: Alison Craig, for the applicant Michael S. Dunn, for the respondent

Heard: July 19, 2021 by videoconference

Endorsement

Overview

[1] The appellant, D.L., was convicted of a number of serious offences involving a violent sexual assault on an intimate partner. Those convictions include sexual assault, assault, mischief, extortion, unlawful confinement, criminal harassment and breach of probation. He plead guilty to possession of cocaine for the purpose of trafficking. He received a global sentence of six years minus credit for presentence custody.

[2] He has appealed the convictions and sentence.

[3] In October 2020, the appellant sought and was granted bail pending appeal. The bail judge characterized the decision to grant bail as a “close call”.

[4] On February 1, 2021, the appellant was charged with uttering a death threat. His bail pending appeal expired on February 13, 2021 and he again sought bail pending appeal.

[5] On February 19, 2021, the application was denied for two reasons. First, the appellant was charged with uttering a threat: When he went to his father’s premises upon his death to collect certain property, he became angry and said to his stepmother “If you call the police, I will kill you in three seconds”. Without acknowledging the veracity of this account, counsel submitted before Benotto J.A. that the appellant was upset about his father's death. Benotto J.A. did not accept this excuse and suggested that, “these allegations raise concerns about public safety and public confidence in the justice system”.

[6] Second, Benotto J.A. noted that the transcripts of the trial were now available. While the merits passed the “not frivolous” standard, Benotto J.A. suggested that the strength of the appeal was not as strong as the first bail judge assumed and together these factors “significantly tip the scales to enforceability. This is no longer a close call.”

[7] On June 2, 2021, the charges for uttering a death threat were withdrawn after the appellant entered into a common law peace bond and in any event, he notes that the charge was brought when his father had just passed away and that there was no evidence of any actual violence. He applies again for bail pending appeal.

[8] The Crown opposes the appellant’s application for bail pending appeal on the basis that the applicant has not demonstrated that there is a material change in circumstances to justify revisiting the February 19, 2021 order denying him bail.

[9] The Crown also submits that the appellant has not demonstrated that his continued detention is not necessary in the public interest. The Crown submits that the weak ground of appeal, risk to public safety, seriousness of the offences, and lengthy sentence are such that his continued detention is necessary in the public interest under s. 679(3)(c) of the Criminal Code, R.S.C. 1985, c. C-46.

[10] It is common ground that to obtain bail pending appeal pursuant to s. 679(3) of the Criminal Code, the applicant must establish that: (1) the appeal is not frivolous (s. 679(3)(a)); (2) he will surrender himself into custody in accordance with the terms of the order (s. 679(3)(b)); and (3) his detention is not necessary in the public interest (s. 679(3)(c)). In a s. 679 application, the applicant bears the burden of establishing each of the three itemized release considerations, on the balance of probabilities, before an interim judicial release order may be made: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

Evidence Regarding the Offences at Issue

[11] The convictions being appealed from, pertain to the appellant's former girlfriend. At the time, both had entered new relationships.

[12] It is not disputed that within a period of two days, the appellant sent 68 emails to the complainant before she agreed to meet him. The trial judge held that this was “not just annoying … it is threatening”. The emails refer to things he would do to collect the money she owed him, threatening to get the money from her new boyfriend as well as her family. The trial judge found the emails constituted criminal harassment. After receiving these emails, the complainant agreed to meet him and picked him up in her car.

[13] Their account of what happened thereafter was significantly different.

[14] The appellant claims the complainant yelled at him because he had changed the pickup location, they argued and then drove to a parking lot where they kissed. After about 20 minutes they left, he asked her if she was going to leave the man she was seeing, and she asked whether he would leave his girlfriend.

[15] The complainant agreed that she was angry with the appellant for changing the pickup location. She said that when she arrived, he tried to convince her to go inside and told her to message the man she was seeing to break off the relationship. When she refused, he took her car keys and she followed him inside. She claims she saw a person from behind she believed to be the homeowner, whom she knew. Thereafter she claims the appellant gave her an ultimatum: to message the man she was seeing or take her clothes off. She took her clothes off. Once she undressed, the appellant took his clothes off and forced her to perform fellatio. He then told her to lie on the bed and had intercourse with her and, after ejaculating on her stomach, turned her over and continued to have intercourse. She said that thereafter, they both showered, and she said she would message her former boyfriend. She says the appellant slammed the door shut and raised his fist as though to punch her and she started to cry. He then let her leave and she drove him to the place where she usually picked him up.

Discussion

[16] An appellant who has been denied bail pending appeal must demonstrate a material change in circumstances on a new application. A material change in circumstances requires “additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in section 679(3)”: R. v. Baltovich (2000), 47 O.R. (3d) 761 (Ont. C.A.), at para. 6. If there has been a material change, the judge must consider the statutory grounds and be satisfied that the applicant meets the onus in s. 679(3).

The first issue: Is there a material change in circumstances?

[17] When the appellant appeared before Benotto J.A., he was charged with uttering a threat while in the presence of his surety. She held that, taken together, this fact, the public safety concerns, and the finding that strength of the case had weakened since the findings of the first bail judge (as transcripts of the trial were now available), led her to conclude that this was no longer a “close call” and that the appellant should be denied bail pending appeal.

[18] The question is whether there is a material change in circumstances that could alter the assessment that the appellant should be detained pending appeal.

[19] The charge of uttering a threat has now been withdrawn and the appellant has entered into a common law peace bond. A peace bond is not an admission of guilt but is a preventative order which intended to keep the peace. There must be some basis for the bond: R. v. Musoni (2009), 243 C.C.C. (3d) 17 (Ont. S.C.), at para. 40, aff’d 2009 ONCA 829, 248 C.C.C. (3d) 487, at paras. 3-4, leave to appeal refused, [2009] S.C.C.A. No. 534.

[20] Moreover, no reasons were offered by the appellant for withdrawal of the charges. I note that before Benotto J.A., “without acknowledging the veracity of the Crown’s account, counsel submits that he was upset about his father’s death”.

[21] Taken together:

a) the appellant’s criminal past with multiple convictions for violent offences and many breaches of court orders;

b) these serious convictions;

c) the appellant’s agreement to enter a peace bond upon withdrawal of the charge of uttering a threat without providing any explanation as to why he elected to do so; and,

d) the enhanced strength of the case after review of the transcripts of the evidence at trial,

satisfy me that the change in circumstances does not represent a material change such that the decision as to whether to grant bail should be revisited. This is especially so given that the first bail judge determined that the granting of bail was a “close call” before the trial transcripts were made available.

The second issue: Is there a public safety concern that warrants continued detention?

[22] In any event, I find the public interest concerns justify the appellant’s continued detention.

[23] The “public interest” criterion under s. 679(3)(c) considers the protection and safety of the public: (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737; R. v. Stojanovski, 2020 ONCA 285, at para. 18.

[24] Public confidence ought to be considered when the offences are serious: Oland, at paras. 29-30. The question of public confidence must be assessed from the perspective of an informed member of the public who understands our bail system, and the facts of the case.

[25] The public confidence component involves weighing enforceability, or the need to respect the general rule of the immediate enforceability of all judgments, and reviewability, which concerns the need to provide for a meaningful review process, such that the process does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland, at paras. 24-26.

[26] The more serious the crimes, the greater the risk that public confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: Oland, at para. 37. The absence of flight or public safety risks will attenuate the enforceability interest. Other factors should also be considered where appropriate: Oland, at para. 39.

[27] The appellant was convicted of a serious sexual assault, forcible confinement and assault in the context of a domestic relationship. At that time, he was on probation.

[28] He was also convicted of criminal harassment and pled guilty to trafficking cocaine. These convictions are not affected by his argument on appeal that the trial judge erred in assessing credibility.

[29] Moreover, the six-year sentence underscores the seriousness of the offences: R. v. S.M., 2020 ONCA 427, at para 13.

[30] Finally, the appellant’s threats to the complainant engage public safety concerns weighing in favour of enforceability against release: Stojanovski, at paras. 24-27.

[31] Lastly, in respect of the trial judge’s credibility assessment, while it is possible that the court could accept the homeowner’s evidence that he did not believe the appellant ever brought the complainant to his house, it could also accept the complainant’s evidence that she was assaulted there. I note that the homeowner said that he did not know what happened when he was not at home.

Conclusion

[32] For these reasons, I find the change in the strength of the appellant’s case is not material and that in any event, the public interest favours his continued detention pending the hearing of his appeal. The application for bail pending appeal is therefore denied.

“J.A. Thorburn J.A.”